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President Obama v. David Ortiz? Right of Publicity, the First Amendment and Selfies

Last week, David Ortiz and his Red Sox teammates visited the White House in honor of the Sox winning the 2013 World Series. While there, Ortiz asked President Obama for a selfie, which the President agreed to do. The selfie was re-tweeted countless times. Here's the photo:

Unbeknownst to the President, Ortiz had recently signed an endorsement contract with Samsung -- makers of the phone he used for the selife -- to promote the product and Samsung. Samsung aggressively promoted Ortiz's selfie on Twitter and noted it was taken on one of its phones. The White House is not happy about the arguable deception, fearing that it could be mistaken as an endorsement by President Obama of Samsung.

I spoke with Julie Loncich of ABC News's Boston affiliate, WCVB, last night about the role of right of publicity and the First Amendment. The President, like all Americans, has a right of publicity, which generally protects our image and likeness from being used without permission (see Ed O'Bannon v. NCAA). The First Amendment, however, trumps the right of publicity when persons are covered in the news. You could argue that anything the President of the United States does counts as "news," including when he poses for a selfie with a legendary Boston athlete. Here's the video of my interview: